R v Sowaid

District Court of NSW|2023-04-04

Remarks on sentence

The offender appeared at the Downing Centre Local Court on 8 December 2022 and pleaded guilty to one charge of supply prohibited drug, namely 4943.4g of Gamma-Butyrolactone ("GBL"), being an amount, which was not less than the large commercial quantity applicable to that prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).
The plea of guilty was adhered to at the sentence hearing on 4 April 2023. Accordingly, the offender is entitled to the full 25% discount for the utilitarian value of the plea of guilty.
The maximum penalty for the offence of supply prohibited drug not less than the large commercial quantity is life imprisonment. In accordance with Pt 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999, this offence has a standard non-parole period of 15 years. The maximum penalty of life imprisonment and the standard non-parole period of 15 years is an indication of its seriousness and acts as a sentencing guidepost or reference point.
Admitted on behalf of the Crown were the following: 1. Ex C1 - Amended Charge Certificate 2. Ex C2 - Agreed Facts 3. Ex C3 - Criminal History 4. Ex C4 - Custodial History 5. Ex C5 - Sentencing Assessment Report dated 3 March 2023 Material related to co-offender - George 1. Ex C6 - Amended Charge Certificate 2. Ex C7 - Form 1 3. Ex C8 - Agreed Facts 4. Ex C9 - Criminal History Material related to co-offender - Karanouh 1. Ex C10 - Amended Charge Certificate (H-86041074 and H - 84543128) 2. Ex C11 - Form 1 3. Ex C12 - Agreed Facts 4. Ex C13 - Criminal History (NSW) 5. Ex C14 - Criminal History (Queensland) 6. Ex C15 - Criminal History (AFP) Material related to co-offender - Almahasneh 1. Ex C16 - Amended Charge Certificate 2. Ex C17 - Agreed Facts 3. Ex C18 - Criminal History

Agreed Facts

The offender was arrested as part of a Strike Force established by the South Sydney Police Area Command in September 2021 targeting the ongoing supply of prohibited drugs in the Waterloo area. A controlled operation was granted targeting drug supply activities by the co-offender Mahmoud Karanouh ("Karanouh") and any other persons associated with him. There were a number of other co-accused involved in the operation including Jahralee George ("George"). The police operation used an authorised person to contact and participate in the supply of illicit drugs, referred to as Witness A.
On 7 November 2021 there were various communications between Witness A and Karanouh relating to the supply of drugs. These communications continued on 9 November 2021. Following these latter communications Karanouh was observed in Punchbowl interacting with the driver of a taxi.
On the day of the supply the offender was staying at Bankstown Sports Club. At 2:30pm, Karanouh met up with the offender and the two were captured walking into an address in Bourke Street Waterloo. Shortly thereafter the same taxi, operated by a co-accused, was parked on the western curb of Crystal Street Waterloo. At 3:20pm Witness A attended the same address in Bourke Street Waterloo, observing Karanouh standing near the intersection with Danks Street.
At 3:26pm Karanouh walked to Witness A's vehicle, sitting in the front passenger seat before calling the offender and asking him to "bring the bag down". At 3:29pm Witness A observed the offender walking from the Bourke Street address before meeting with Karanouh. The two were captured outside the Bourke Street address at which time the offender handed Karanouh a backpack before they both walked back to where they entered Witness A's vehicle.
Karanouh removed a red-and-white Coles reusable plastic bag from the backpack which contained five white 1L plastic bottles purportedly containing Gamma-Hydroxybutyric Acid. In exchange, a black sports bag containing $17,500 was handed to the offender as payment. The offender and Karanouh left the vehicle and Witness A departed.
The Coles bag was subsequently handed to police by Witness A and was found to contain five white plastic bottles which, when examined, were found to contain a total of 4943.4g of GBL between the five bottles: 1. 1979.2g at a purity of 89% (Bottles 1 and 2). 2. 991.2g at a purity of 89.89% (Bottle 3). 3. 1973g at a purity of 88.5% (Bottles 4 and 5).
The offender was subsequently arrested on 8 January 2022 and advised that he was to be arrested for large commercial drug supply. The offender declined to participate in an electronically recorded interview and underwent a forensic procedure by way of buccal swab.

Criminal History

The offender has a limited criminal history of stalk/intimidate with intention to fear physical harm (February 2021), drive vehicle with illicit drug present in the blood (March 2021) and possess prohibited drug (December 2021).

Sentencing assessment report

The offender was assessed by Amber Jeffery Community Corrections Officer in March 2023. The report noted that at the time of the offending the offender was living an itinerant lifestyle between family and friends in the Parramatta area. However, he had maintained a close relationship with his parents and brother. He was the father of a younger daughter however had no contact due to a current noncontact apprehended domestic violence order. His family appeared to assist by way of emotional and cultural support. At the time of the offending the offender was in receipt of workers compensation as a result of a wrist injury obtained during his employment as a labourer.
The report noted a history of anti-social behaviour, observing that his offending commenced in 2021. His previous criminal history was minimal consisting of two prior charges related to drug offences and contravening an apprehended domestic violence order. However, during his time held on remand he had received four charges for custodial misconduct which related to physical combat, failed prescribed drug test and failure to comply with centre routine. On 6 March 2023 he received a charge for drug possession. The author of the report noted that this particular charge indicated "a marked escalation in his offending behaviour".
The offender freely acknowledged that the offending behaviour was a means to supplement his own drug use as well as to repay a considerable drug and gambling debt. The author noted that whilst the offender had asserted he engaged in pro social activities and lifestyle choices, he also appeared "supportive of specific criminal behaviours and exhibited selective disregard for noncriminal alternatives". The offender had a history of problematic polysubstance abuse including cocaine, cannabis, prescription medication and Gamma Hydroxybutyrate. His offending behaviour was a direct result of the personal substance abuse and the need for financial reward. The offender appeared to acknowledge the impact of his offending including on communities and the families of drug users.
The offender was willing to engage with Community Corrections to undertake cognitive behaviour change programs and interventions. He was assessed at a medium - low risk of reoffending which meant he would be required to have contact with Community Corrections every six weeks.

Report of Sam Albassit - Psychologist

Mr Albassit assessed the offender via teleconference on 30 March 2022. The offender told Mr Albassit that he was a 32 year old divorced man with a five year old daughter who he had not spoken to in approximately two years. He had two younger brothers and one younger sister, and his parents were still alive and together. He reported a difficult and traumatic upbringing including an abusive and violent father from whom he would receive regular "beatings". Whilst his mother would try to prevent the assaults, she was powerless when he was full of rage. He would then witness his mother be berated for involving herself and felt some sympathy for her as she too was helpless when the abuse occurred.
The offender also reported being abused on three occasions in his childhood including a single incidence of abuse by a teacher at the age of nine, a further episode of abuse at the hands of a rugby league trainer at the age of 11 and an incident involving the principal of the school he attended. As a consequence of these traumatic events the offender reported feeling confused, isolated and lost; he felt sad and alone and struggled emotionally thereafter. The offender reported a problematic schooling, ultimately being expelled in year 10 before returning to the school to complete his year 12 with difficulty. Medical and psychological treatment which was recommended was not provided to him during these years.
As a consequence, he struggled to make friends and instead befriended people with anti-social activities; he began associating with "the wrong crowd". He was unable to obtain any support from his parents due to his strained relationship.
The offender began using illicit substances at the age of 13 commencing with cannabis but rapidly progressing to other substances including cocaine, Xanax, Lyrica and Tramadol. He acknowledged developing a polysubstance dependence at the age of 18.
The offender continued to experience difficulties having left school, including difficulties with his tertiary studies. He then began gambling which was excessive by the age of 20.
The offender referred to his marriage in 2017 with the birth of his daughter shortly thereafter. However, the offender described the relationship as quickly becoming "toxic and manipulative", in the context of his ongoing use of illicit substances and excessive gambling. The offender reported that following his marriage breakdown he continued to live life "recklessly" and the breakdown and his addictions "overwhelmed him". He struggled dealing with mental issues and the breakdown caused significant distress and anxiety resulting in his mental health spiralling out of control. He was homeless for a period and at the time of his offending was living in a hotel. A brief period of psychiatric treatment in 2019 did not appear to assist. He stated his mental health further declined when his reports of the earlier sexual abuse to his mother were dismissed. As a result of his ongoing drug and gambling addiction he developed a significant debt which was "called in" by his suppliers leading to the offending conduct.
Testing revealed the offender falling within the severe range for depression, anxiety and stress as well as post traumatic stress disorder ("PTSD"). Mr Albassit confirmed the diagnosis of substance dependence disorder which was active at the time of the offences. He considered there was a correlation between the offender's mental health impairments and his offending behaviour.
Mr Albassit concluded that the offender had been exhibiting symptoms of PTSD for a significant part of his life as well as symptoms of substance dependence for approximately 15 years. He presented with a history of mental health issues in the context of long-standing trauma from physical and sexual abuse and substance dependence. This was also in the context of a deprived childhood resulting in significant trauma from a young age which led to exhibiting trauma related symptomatology. It was in this context that the offender struggled with emotional regulation in all aspects of his life particularly following the reported abuse as a child. Ultimately the offender developed poor judgement and decision-making skills and poor coping strategies, ultimately leading to a destructive pattern of substance dependence and spiralling significantly into a cycle of addiction.
Mr Albassit confirmed his view that the offender experienced significant symptomatology pertaining to his mental health conditions at the time of the offending which markedly impaired his judgement. In the circumstances there was a correlation between the offending behaviour, mental health issues and substance dependence; he was experiencing significant disturbance in his mental health at the time of the offending.
The offender expressed remorse in respect to his behaviour, acknowledging a "serious lack of judgement". The offender recognised his behaviour was reckless and impulsive and had the potential for significant repercussions on the wider community. He acknowledged the impact of drugs on people's lives, particularly since his incarceration. Ultimately Mr Albassit considered that the offender was now aware of his behaviours, took responsibility for his actions and wanted to make significant changes. In the circumstances he considered the offender's prospects of rehabilitation were good, especially with the treatment plan proposed in the report. The offender had expressed a desire to restart intensive treatment required to treat his psychiatric and psychological conditions. Mr Albassit observed that trauma focused therapy could not be delivered whilst in custody.

Majed Sowaid - offender's father

Mr Sowaid corroborated the account provided by the offender in respect to his difficult upbringing. Mr Sowaid spoke of his exposures to war in Lebanon contributing to his violent and abusive behaviour towards the offender. Mr Sowaid similarly confirmed the offender's anti-social behaviour during his schooling years and his early use of drugs. He referred to the offender's heavy gambling from the age of 20 and the difficulties in completing post school tertiary studies. He referred to the attack to which the offender was subjected resulting in a broken jaw and subsequent surgery. He also noted the offender's failed marriage, observing that a major part of their troubles revolved around the offender's drug use. The offender did not return to the family home following the breakdown of the marriage. He had difficulties understanding how the offender was funding his gambling and drug addiction. Mr Sowaid referred to a considerable improvement in the relationship with his son since his arrest and incarceration. He now appreciates the impact of the offender's difficult upbringing and was recently told of the sexual assaults as a child.
Mr Sowaid confirmed that his family was willing to support the offender should he be released from custody; he was willing to accept him back into the family and ensure he received the necessary support during his recovery phase.

Halima Sowaid - offender's mother

Mrs Sowaid similarly corroborated the offender's history of the difficulties with his upbringing describing the household as "very toxic and abusive". She confirmed the offender's difficulties during his schooling years and that he felt "isolated and alone". Mrs Sowaid observed the offender getting involved with the wrong crowd leading to an early use of drugs. This no doubt contributed to the offender's expulsion from school and his subsequent difficulties with tertiary studies including an expulsion from TAFE. She acknowledged that the offender was not provided access to counselling despite recommendations in this respect. She now appreciates the assistance that counselling may have provided to the offender.
Mrs Sowaid referred to the offender's disclosure of his sexual abuse as a child; she was completely shocked and did not know how to respond to it. However, she considered that it all made sense in that the offender was withdrawn as a young child and demonstrated outbursts as well as drastic mood swings. She also considered that the offender's marriage breakdown was largely caused by his ongoing drug use. The divorce "dug him deeper into his dark hole". She was aware of the ongoing gambling issues.
However, Mrs Sowaid considered that that the offender had changed since being in custody. He spoke in a more positive manner and "genuinely wants to do better". She confirmed that the family would support the offender upon his release having now been aware of his struggles in years past.

Dr Indrani Mukherjee

In a report dated 12 July 2021, Dr Mukherjee confirmed that the offender had commenced psychological sessions for a major depressive disorder following consultation with a psychiatrist, Dr Rastogl from December 2019. The offender had reported PTSD approximately 10 years prior for which he was being treated until injuring his right arm/shoulder at work in January 2021. The report also noted the offender being "turned away" from his family and wife, an AVO in 2021 and having lost his driver's licence in May 2021.

Surgery consultation notes by Dr Ismail

The surgery consultation notes from 2021 document depression and low mood, which, it appears, led to the referral to Dr Mukherjee.

Tertiary education certificates

Various tertiary education certificates document the offender having trained and obtained certification in respect of various vocational pursuits dating from 2006.

Hospital notes produced by Grafton Base Hospital

These documents record the offender having suffered an injury following being punched and struck with a tin can, suffering various facial injuries. CT scans revealed a depressed fracture of the right orbital floor. Further medical records, including a report from Dr Arthur Bilski, document assessment in respect to the injury.

Crown submissions

The Crown referred to several authorities (Paxton v R [2011] NSWCCA 242; Koh v R [2013] NSWCCA 287; Huang v R [2017] NSWCCA 312) to the effect that the quantity of drugs involved, and the role played by the offender, were significant considerations in assessing objective seriousness. Further, the fact that the drugs were not actually disseminated into the community did not reduce the moral culpability of the offender; Giang v R [2017] NSWCCA 25 at [24]; Taysavang v R; Lee v R [2017] NSWCCA 146 at [47].
The Crown contended that offender's conduct fell within the mid-range of objective seriousness in that he had facilitated the "up line" supply of a large quantity of GBL. It was contended that the evidence suggested a high degree of organisation by a syndicate of which the offender was a participating member, noting that it appeared the offender had immediate and easy access to a large amount of GBL requested of him. It was apparent that the offender was engaged in the sale of the drug for financial gain. The evidence did not suggest that the offender was merely a courier, but rather the circumstances of the transaction suggested "his own up line involvement in the chain of supply".
The Crown noted that the court needed to be mindful of the importance of general deterrence/protection of the community, sentencing practices in light of the serious implications of drug dealing and any possible alternative to full-time imprisonment that may be available in the individual case; Parenta v R [2017] NSWCCA 284 at [107] - [115]. It was contended that the sale and supply of the drug by the offender was on a scale that was "extreme" and had the potential to cause far-reaching harm within the community. The Crown noted that the offender was the youngest of the three offenders and, whilst his criminal history was not "unblemished", it was "relatively insignificant". However, it was observed that at the time of the offending the offender was subject to a conditional release order.
In oral submissions the Crown further addressed the offender's subjective case, contending that the offender's personal history referred to in the psychologist's report and supporting statements would be given limited weight. The submission that an intensive corrections order was a sentencing alternative was opposed given the quantity and purity of the drug and the circumstances in which the supply occurred, contending that the offender was an "up line supplier" of the drug. It was contended that parity would be considered as between the offender and the co-offender George; there was an "equilibrium between them" considering their involvement.

Offender's submissions

The offender contended that the objective seriousness fell within the lower end given the quantity supplied (4943.4g) was just over the threshold for a large commercial quantity (4kg). Further the offender supplied the drug to a police witness on a single occasion and was therefore an "isolated incident".
The offender contended that the role of the offender and the level of criminality, such as their position within a hierarchy, was more important in determining the sentence than the quantity of drug: R v Olbrich [1999] HCA 54; 199 CLR 270 at 279 [19]. Self-evidently the more extensive the offender's role the higher the sentence was likely to be.
One of the hallmarks of the position of a person with any hierarchy or their role was their exposure to the danger of apprehension; R v Cheung; R v Choi (2010) 203 A Crim R 398. In the present case, by supplying the drugs himself, the offender had exposed himself to detection and made his apprehension more likely. The offender contended that on all the evidence the offender was towards the lower end of the hierarchy of drug suppliers and was essentially a courier. The offender highlighted the absence of evidence that he had played any organisational management role, contributed financially to the offending, was to share in any profits, gave instructions to other people, purchased the drugs or the absence of evidence of any sophisticated operation or syndicate.
Whilst the offender conceded that his record disentitled him to the leniency of an offender with no record, the limited criminal history (including no convictions for drug supply) was insufficient to amount to an aggravating feature on sentence.
The offender was entitled to the full discount of 25% for his plea of guilty which, it was contended, was also of significance in assessing the offender's prospects of rehabilitation and the need for specific deterrence and protection of the community. It was noted that the offender had expressed remorse, consistent with his plea of guilty, as expressed in his reporting to the psychologist.
The offender's disadvantaged upbringing must be taken into account in sentencing (Bugmy v R (2013) 249 CLR 571; [2013] HCA 37), evidenced by the history to the psychologist and the statements of the offender's parents, in particular, the abuse and violence to which the offender was subjected at the hands of his father. Profound childhood depravation was not required as a threshold test to applying Bugmy principles, citing Hoskins v R [2021] NSWCCA 169 at [57]. In the circumstances the weight that would otherwise be given to personal and general deterrence and the protection of society was to be moderated in favour of other purposes of punishment, and in particular the offender's rehabilitation. Further, the offender's disadvantaged upbringing would operate to reduce his moral culpability, although the offender acknowledged that the presence of a drug habit was not a matter of mitigation. The fact that an offence was motivated by the need to support a drug habit may be taken into account as a relevant factor to the objective criminality of the offence (Nasrallah v R [2021] NSWCCA 207 per Hamill J).
It was also contended that the court would take into account the impact on the offender of the sexual abuse to which he was subjected as a child. It was submitted that there were good prospects of rehabilitation given the early plea of guilty, demonstrated remorse, commitment to rehabilitation, general abstinence since arrest, a commitment to disassociation with negative peer groups and the low likelihood of reoffending. It was also necessary to take into account the hardship in custody to which the offender has been subjected due to the lengthy lockdowns during the Covid-19 pandemic.
In respect to specific deterrence, it was submitted that the Court would give significant weight to the limited criminal history as well as the steps taken by the offender towards his rehabilitation since his arrest, citing Standford v R (2007) NSWCCA 73. Ultimately it was the offender's submission that whilst the s 5 threshold had been crossed, a sentence of imprisonment not exceeding two years would be an appropriate outcome and that community safety would be best addressed by allowing the offender to serve his sentence in the community.
In oral submissions counsel for the offender maintained that the objective seriousness fell towards the lower end of the range given the quantity and the offender's role. It was contended that there was insufficient evidence to find that the offender was an upline supplier. The offender had placed himself in immediate observation and in the circumstances the court would find that the offender was not an up line supplier. Further there was no evidence that the offender was part of a significant syndicate or that there was a sophisticated operation in existence. His involvement spanned no longer than 60 minutes and the evidence established that the level of planning was low. There was no evidence as to what happened to the $17,500, being the proceeds from the supply.
It was contended that the evidence established that the supply was to support a long-standing drug addiction on a background of dysfunction and significant mental health issues. The letter from the offender's father supported these subjective circumstances and the offender continued to have significant family support, evidenced by their presence in court at the sentence hearing. This was also supported by the letter from the offender's mother. The offender conceded that the breach of conditional liberty at the time of the offending was an aggravating factor although to a limited extent.
In assessing moral culpability counsel noted the offender's traumatic upbringing, the letters from his parents supporting violence at the hand of his father and the sexual assault was all consistent with the offender "acting out". Further, the parents' observations of the offender's behaviour were consistent with the timing of the alleged sexual assaults and was corroborative of the offender's history in this respect. It was noted that the offender was self-medicating from an early age. It was noted that the offender did not engage in criminal behaviour until the age of 32, consistent with the fact that the drug supply was aberrant behaviour.
The court would find that the offender's mental health contributed to the offending in a material way. General deterrence should be moderated by the offender's subjective circumstances whilst acknowledging that a drug addiction was not a mitigating factor. It was contended that the offender had good prospects of rehabilitation particularly with the support of his family. Further the various certificates and qualifications obtained by the offender were supportive of the offender otherwise leading a "pro social" existence. The court would take into account the hardship suffered by the offender in custody including lengthy periods without any interaction, and the assault inflicted on the offender in October 2022. In respect to general deterrence this would be moderated given the offender's PTSD and the application of Bugmy principles. In respect to protection of the community there was no history of previous drug supply and addiction was no longer present. The offending was over a short period. The offender expressed a desire to engage in further rehabilitation including the admission to a residential facility. The harm to the community was minimal given the drugs were not distributed into the community, whilst conceding that this did not reduce the offender's moral culpability.

Consideration

The court is not entitled to take an account of facts adverse to the interests of the offender unless they have been established beyond reasonable doubt. However, circumstances favourable to the accused need only be proven on the balance of probabilities: R v Olbrich.
The offending involved a single act of supply of approximately 4.9kg of GBL, being just over the threshold of 4kg for the relevant offence. I am satisfied that the offender was more than a mere courier in circumstances where the offender was facilitating the upline supply of a large quantity of GBL. I do not accept the Crown's submission that the offender's involvement was to a "high degree", this is particularly in circumstances where the offender did expose himself to the danger of apprehension, and accordingly was towards the lower end of the hierarchy of drug suppliers.
In Pham v R [2013] NSWCCA 217 McCallum J concluded at [27] that: "The critical proposition is that the quantity of the drug is a relevant but not determinative measure of the degree of seriousness of the offending. The Court must consider all of the circumstances informing that issue, including the role played by the offender, his or her state of knowledge, the reward to be received and any other relevant indicator of moral culpability or lack of it. That said, as recently explained by Latham J, the quantity of the drug remains a very material consideration in assessing the objective seriousness of a State offence against the Drug Misuse & Trafficking Act."
I find that the offence falls within the low range of objective seriousness.
Prohibited drugs circulating in the community have a profound effect. As has been consistently observed by the Courts, in respect of sentencing for drug-related matters, there are significant consequences from the circulation of drugs in the community. In NGO v R [2017] WASCA 3, the Western Australian Court of Appeal observed that the illicit drug trade is a "scourge" inflicting significant damage on those who consume the drugs.
I am satisfied that the offence was committed for financial gain. The offender was on a conditional release order at the time of offending arising from the conviction for stalk/intimidate with intent to fear physical harm. The offender has a relatively limited criminal history which disentitles him to leniency although it does not act as an aggravating factor.
I am satisfied that the offender was subjected to a difficult and traumatic upbringing at the hands of an abusive and violent father and being subjected to regular beatings. He also witnessed his mother being subjected to verbal abuse from the offender's father when she sought to intervene. The circumstances of the offender's upbringing were corroborated by the offender's parents in separate statements in which they freely acknowledged these circumstances.
Further, I am satisfied that the offender was subjected to three incidences of sexual abuse in his formative years, commencing at the age of nine. The offender's history of this abuse, as provided to Sam Al Bassett, was corroborated by the offender's mother, who observed the offender's change in personality at this time including being withdrawn, experiencing significant mood swings and outbursts.
Caution is required when assessing out-of-court representations for the purpose of determining sentence, as was noted by Smart AJ in R v Qutami [2001] NSWCCA 353. His Honour's observations in this respect were the subject of further consideration by Wilson J in Imbornone v R [2017] NSWCCA 144. Her Honour discussed the care required, with reference to Qutami amongst other authorities. Beginning at [57], her Honour summarised the statements that are derived from the authorities to which she referred and once more reminded sentencing courts of the caution one must bring to bear when dealing with factual matters drawing upon representations that are not affirmed or unsworn and remain untested.
However, in Lloyd v R [2022] NSWCCA 18 McCallum JA (with whom Hamill and Cavanagh JJ agreed) noted that the observations of Smart AJ in Qutami are sometimes mistaken for principle, and that the weight and cogency of such evidence is a matter for the individual assessment of the sentencing judge. Her Honour observed at [47] that there is no principle of law that requires a sentencing judge to exercise "very considerable caution" before relying on the contents of an expert report absent evidence from the offender. In this respect her Honour acknowledged that the court is not the only forum in which a reliable medical history can be obtained.
The assessing psychologist accepted that the offender had been exhibiting symptomatology of PTSD for a large part of his life, consistent with the abuse to which the offender was subjected at the hands of his father and other abusers. The offender developed a drug habit in his teenage years and by the age of 18 had developed a poly substance dependence. This no doubt contributed to the offender's difficulties in high school and tertiary studies. The offender then experienced a difficult marital breakdown which exacerbated his substance use. The psychologist's diagnosis of depression, anxiety and PTSD is consistent with the offender being referred to a psychiatrist in December 2019 and psychologist in 2021, before the offending the subject of this sentence. In the circumstances, I accept that the offender's moral culpability is reduced by reason of the offender's difficult upbringing; Bugmy v R; Hoskins v R.
I accept the opinion of Mr Al Bassett that there was a correlation between the offender's mental health impairments and his offending behaviour; that he was experiencing significant disturbance in his mental health at the time of the offending. Accordingly, I am satisfied that the offender's moral culpability is reduced by reason of the offender's mental health. Further, the offender is an inappropriate vehicle for general deterrence and the need for general denunciation is reduced; DPP v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] - [178].
I also take into account the hardship suffered by the offender whilst in custody as a result of the lengthy lockdowns during the Covid-19 pandemic; Rakielbakhour v DPP [2020] NSWSC 323.
The offender has expressed remorse and appears to have come to terms with the connection between his upbringing, drug use and criminal behaviour. Whilst there are reasonable prospects for the offender's rehabilitation given the expressed remorse, and the support from the offender's immediate family, this must be moderated given the offender's conduct whilst on remand. As the author of the sentencing report observed, the offender had received four charges of custodial misconduct including one relating to a physical altercation involving a fight or other physical combat. Further, the offender failed a prescribed drug test reflecting a marked escalation in his offending behaviour.
I am satisfied that the s 5 threshold has been crossed and that no penalty other than imprisonment is appropriate. The maximum penalty for the offence is imprisonment for life. The offender has entered a plea of guilty at the earliest opportunity and is entitled to the full 25% discount reflecting this plea. The plea is also consistent with the offender's expressed remorse.
The parity principle is one of equal justice, requiring that like offenders should be treated in a like manner and allows for different sentences to be imposed on co‑offenders where it is justified for some reason, for example, a differing role and/or differing personal circumstances, such as for example age, background, criminal history, findings that have been made in terms of their prospects of rehabilitation or mental health issues. If there are differences, the question is always one of due proportion being maintained between the sentences having regard to the different circumstances of the co‑offenders and having regard to their different degrees of criminality.
In terms of differing charges faced by differing offenders, the majority of the High Court (French CJ, Crennan and Kiefel JJ) stated in Green v R; Quinn v R (2011) 244 CLR 462 at [30]: "The foundation of the parity principle in the norm of equality before the law requires that its application be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application. Nevertheless, as Campbell JA recognised in Jimmy v R, [48] there can be significant practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant. The existence of those difficulties may be accepted. So too may the inability of a court of criminal appeal to undertake, under the parity rubric, a de facto review of prosecutorial charging discretions. Those practical difficulties and limitation, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged.' (Emphasis added)
In applying the parity principle, the offender is to be sentenced for the more serious supply offence of large commercial quantity although the quantity is just over the threshold for the offence. This is to be compared to the co-offender Karanouh who supplied five times the threshold for the relevant offence, and George who supplied twice the threshold for the lesser offence. The offender Sowaid has no Form 1 matters, as compared to the co-offenders. There is a limited criminal history, similar to the offender George, unlike the offender Karanouh. The offender was the subject of a conditional release order at the time of the offending, unlike the co-offender Karanouh. There are strong subjective features, unlike the offender Karanouh. Moral culpability and general deterrence are reduced given issues of mental health and by application of the Bugmy principles. However, given the quantity for which the offender is to be sentenced, when compared to the co-offender who is to be sentenced for the same offence, there must be a significant difference in the severity of the sentence passed.
The maximum penalty for the offence is life imprisonment with a standard non-parole period of 15 years. The appropriate sentence is 5 years 6 months from which is to be deducted the 25% for the utilitarian plea of guilty, resulting in a sentence of 4 years 1 month (rounded down from 4 years 1 month 15 days).
I find special circumstances given it is the offender's first time in custody, mental health issues traversed in this sentence, the need for rehabilitation which will be more readily accessed upon release and hardship suffered whilst in custody during the Covid-19 pandemic. In all the circumstances, the standard non-parole period will be reduced.
The offender was arrested on 8 January 2022 for this offence and has remained in custody since that date. Accordingly, the sentence is to be backdated commencing from the date of his arrest to take into account time already spent in custody referable to the offence.

Orders 1. In respect of the offence to which the offender has pleaded guilty, the offender is convicted. 2. I impose a sentence of imprisonment for 4 years, 1 month to commence on 8 January 2022 to expire on 7 February 2026. 3. I impose a non-parole period of 2 years, 2 months to expire on 7 March 2024. 4. The earliest date the offender is eligible for release to parole is 7 March 2024.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 May 2023

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